10. Weapons Review
9.19. In connection with Denmark’s study, development, acquisition, or adoption of a new weapon, means, or method of warfare, Denmark is under an obligation to determine whether its employment, in some or all circumstances, would be prohibited by AP I or by any other rule of international law applicable to Denmark.168
This legal assessment of the lawfulness of weapons is known as weapon review.
Weapons review encompasses all weapons, weapons systems, and delivery systems that the State in question is studying with a view toward acquisition or is developing or acquiring and which the State uses in armed conflict,169 regardless of whether their employment is at sea, on land, in the air, in space, or in cyberspace.
The purpose of weapon reviews is to establish whether a weapon’s normal or expected use in some or all circumstances (i.e., the injury and damage caused by the weapon when used pursuant to its design purpose*) would be prohibited by the international law applicable to the State. The normal or expected use of the weapon is found by looking at its design purpose*.
In other words, Denmark must establish whether any current international law applicable to Denmark prevents or limits the use of the new weapon, weapons system, or delivery system under consideration. If so, acquisition must be avoided or, depending on the circumstances, cancelled or its use must be subjected to restrictions or limitations.
As regards Denmark, international law encompasses IHL as derived from treaties and customary law, as well as certain human rights. In particular, the right to life and the right not to be subjected to torture and other degrading or inhuman treatment or punishment are relevant, for instance, in connection with the investigation of less-lethal weapons.*
Other issues included in weapons review relate to the natural environment170 and considerations regarding future technologies such as nanotechnologies. Nanotechnologies are aimed at changing the structure of molecules and, therefore, affect the way in which weapons or ammunition can cause injury or damage, e.g., by changing the structure of the core or the envelope of a bullet, thereby changing the input of energy and the way the bullet behaves in soft tissue or by producing fragments that escape detection by X-rays.171 Cyber technologies are another area of attention in which the principle of distinction is challenged in connection with cyber attacks.
As mentioned, less-lethal weapons* must also be subjected to weapons review. As less-lethal weapons* are designed to have a lower probability of being lethal during normal or intended use, the weapons review is not to be done on the same basis of international law as that applicable to weapons designed to be lethal. The standard of reference in this weapons review is other weapons that have also been designed to be less lethal, and the weapons review must demonstrate whether less-lethal weapons* during normal or intended use are more lethal than the other less-lethal weapons* with which they are compared and, if so, to what extent.
The obligation to perform weapons review encompasses weapons, means, or methods of warfare, and it takes effect in connection with the study of a new weapon, weapons system, or delivery system and includes the actual acquisition. If a weapon is subsequently changed or modified in relation to the original design and construction of the manufacturer, the weapon is considered a new weapon, and a new weapons review must be performed. It may also be necessary to perform a new weapon-screening if the weapon has another effect on the target than originally assumed. Furthermore, ratification of new treaties in the area and policy amendments may also be assumed to call for an assessment of the need for a new review of already existing weapons.
The weapons review is an internal national screening. Denmark is under no obligation either to share the results of the review with other States or to publish them. Therefore, in connection with the acquisition of new weapons, weapon systems, or delivery systems, Denmark cannot take review results from other countries and manufacturers and rely exclusively on them to fulfil its weapon review obligation.172
168 AP I, Art. 36. See the Declaration of Saint Petersburg, HC 1907, Art. 1, see 1907 Hague Regulations, Art. 23(e), AMW, Rule No. 9, and CWM, Rule No. 48(a).
169 AP I, Art. 36, amended CCW, Art. 1.
170 AP I, Art. 35(3) and Art. 55(1), and SCIHL, Rules Nos. 44-45.
171 See CCW P I.
172 The Danish Ministry of Defence has consolidated Denmark’s procedures pertaining to weapons review in Service Regulation no. 9494 on the international legal evaluation in connection to the study, development, acquisition, or adoption of a new weapon, means, or method of warfare.
Danish Ministry of Defence and Defence Command Denmark, Military Manual on International Law relevant to Danish armed forces in international operations (September 2016) 379–81
